Does Equal Justice For All Include The Poor?

I'm Michel Martin and this is TELL ME MORE from NPR News. Today, we're going to spend some time talking about some important issues in criminal justice, including what happens after people have served their time. Retailer Target recently announced that it would remove questions about an applicant's criminal history from the initial job applications, but many companies still do it. We'll talk about why this has become a growing focus of advocates.

But first, we want to talk about what happens in the courtroom because every year about 12 million people are arrested in the United States. In this country, and if you've ever watched a crime drama, then you know this - one is entitled to representation. And if you cannot afford a lawyer, one will be appointed for you. But in practice, that promise might be fulfilled by a very overworked public defender, like this one from the documentary "Gideon's Army." Here's a clip.

(SOUNDBITE OF DOCUMENTARY, "GIDEON'S ARMY")

UNIDENTIFIED WOMAN: I had a client, charged with murder, who apparently was planning my murder. I worked my [bleep] off for this client. I was the person staying up at night because I didn't know what was going to happen to him. That was me, and you're planning my murder?

MARTIN: That documentary features an organization called Gideon's Promise. It's a group that partners with public defenders across the south to push for indigent defense reform. It's one of the organizations that's receiving new funding as part of a new Justice Department grant program totaling $6.7 million. We wanted to talk more about this and the whole question of representation for people who are lacking in means, and the founder and president, Jonathan Rapping, is with us. Also joining us is Eve Primus, professor of law at the University of Michigan. Welcome to you both. Thank you both so much for speaking with us.

EVE PRIMUS: It's great to be here.

JONATHAN RAPPING: Thank you. It's great to be here.

PRIMUS: Thanks for having us.

MARTIN: Professor Primus, I'll start with you because you've studied this issue kind of around the country. Is the system for representing indigent people or people without means generally working or not?

PRIMUS: It's absolutely not working, unfortunately. You know, there are various ways that states will give people representation when they choose to give people representation, and sometimes those lawyers are given thousands of cases. Those lawyers don't have the requisite training or experience to adequately represent people. They don't even have time to meet their clients before they walk into a courtroom in some jurisdictions.

MARTIN: How are most people represented if they don't have the money to pay for an attorney themselves? How do they get counsel? Do they generally get counsel through a public defenders program or are there other ways?

PRIMUS: Some states have a public defenders program where, if you're eligible to be represented by an attorney, they will appoint an attorney for you if you ask for one. Other states have a panel system, where they have a number of private lawyers out in the community and they will appoint cases to those lawyers to handle as they come up, right. Those lawyers may or may not have any experience in criminal law.

And then a handful of states operate on a contract system under which a law firm or a group of attorneys will bid on and get a contract to handle all of the indigent defense representation that comes through that system. This is particularly problematic because you can think of it as a flat fee system, right. No matter what they do or how little work they do for those individuals, they're paid the same amount. There's no incentive for them, monetarily, to do any additional work or to take those cases to trial.

MARTIN: Jonathan Rapping, how did your group come about?

RAPPING: Well, I started my career in Washington, D.C., which is one of the model public defender programs in the country. And after 10 years of doing that, I moved to Georgia to become the training director for a new statewide public defender system in this state. Two years later, after Hurricane Katrina hit, I went to New Orleans to help with the effort to rebuild that office. I did some work in Alabama and Mississippi, and I really started to see that really passionate public defenders were coming into these systems and just having the passion beaten out of them.

They were given caseloads that no one could manage, they were denied the resources necessary to do the job and it was causing them to burnout - either to quit or to give into a status quo that was unacceptable. And so our organization came about as an organization to build a community of public defenders across the region who would support one another that would provide training and mentorship, so that lawyers could figure out strategies to resist the pressures to simply join in on processing poor people. And that was its genesis.

MARTIN: Why is your organization called Gideon's Promise?

RAPPING: Well, it's named after the Supreme Court decision Gideon v. Wainwright that essentially says, we can have no equal justice unless poor people have the same shot that people with money has. The decision also said that that shot can only be guaranteed when people have lawyers with the time, resources, training, commitment that we would want from someone we hired. Fifty years later, that promise hasn't been fulfilled. So the name of our organization, Gideon's Promise, reflects the fact that we are developing a generation of public defenders to live up to that promise.

MARTIN: Gideon's Promise is going to receive a million dollars of those funds that were recently announced by the Justice Department. What are you going to do with it?

RAPPING: You know, I'm grateful to the Justice Department for recognizing that the work we're doing is really a critical piece of the larger reform effort. And what the Justice Department is funding us to do is to continue improving in each defense on several levels.

On the first level, we are going to use that money to bring more new public defenders into the system and give them the training and support they need. We are going to bring more public defender trainers and supervisors into our community to help them learn the model we've developed and export it to other systems in need of reform. And we are going to use it to help develop our leadership program where we're working with chief defenders in some of the most broken systems who are committed to really supporting their public defenders, to help raise the standard of practice across their states.

MARTIN: If you're just joining us, we're talking about efforts to improve legal defense services for the poor. The Department of Justice recently announced $6.7 million in grants to help with that. We wanted to talk about what that money is for and why, apparently, many people feel it's needed. Joining us to talk about that is Jonathan Rapping of Gideon's Promise - that's an organization working on this, particularly in the South - and Eve Primus, a law professor at the University of Michigan.

Professor Primus, when we were researching this question, we reached out to the National District Attorneys Association to get their perspective on this, and the executive director, Scott Burns, sent us a statement saying that support for public defenders is a good thing. But he wanted to say that, you know, prosecutors don't have it -you know, their lives are no picnic either. He said that they are affected by the same budget cuts that have affected these kinds of services on the defense counsel side, and that they can't ask courts to cap the number of cases that they handle. So what about that?

PRIMUS: They're just fundamentally differently situated than the public defenders office is, right. If the prosecutor's office doesn't have the time or resources to bring certain cases, they have the discretion to drop, right - or null process, right, which is the legal word for dropping a case - that doesn't merit, right, the attention of the justice system, or divert cases where they don't think imprisonment is appropriate and try for treatment options or probationary terms or other things. They have that discretion. They have that flexibility. Public defenders don't have that flexibility. They represent each of their individual clients.

And when a prosecutor says that I'm seeking a criminal charge against your client, right, you have to zealously advocate for that individual. So I understand that the prosecutors also have large caseloads, but they have many more resources at their disposal. They also have the police force, which is doing a lot of investigation for them, right. In my days as a public defender, it was often difficult to get police offices to even speak to me about the cases that I was working on, and prosecutors don't have that problem either. So I understand and I'm sympathetic to the fact that they too have difficult jobs, but I do think that they're very differently situated.

MARTIN: This question of whether the right to counsel is really - is it actually carried out in practice - it's a good theory, but it actually isn't one that, in practice, is effectively implemented, at least, you know, across the country. It's something that advocates have been talking about for years. And every time - just about every time you hear about, say, a death penalty case where somebody who's been exonerated, somebody who was wrongly convicted, you know, often at the root of it is somebody who didn't receive effective assistance of counsel. So I was wondering why you think it is that we're still talking about this. We don't seem to have made any headway on this, at least from your perspectives. So who wants to speak to that? Jonathan, do you want to speak to that?

RAPPING: The criminal justice system is really a system for poor people. It's disproportionately a system for people of color. You're six times more likely to be incarcerated if you're African-American than if you're white. And so I think we're really talking about a civil rights issue. I always say public defenders are this generation's civil rights heroes. But I think because the system is one that impacts communities that many of us see as not our own communities, there isn't the push to reform the system. If you go back 50 years - this is the 50th anniversary of Gideon - Gideon was a case that made clear that public defenders are the engine, the vehicle to ensure that there is equal justice, and that if a person doesn't have a good lawyer, they can't get a fair outcome.

And now poor people really are forced to rely on public defenders that are I think heroic but overworked and underfunded. And I think until we recognize that the people in the system, they're really a lot like our neighbors, a lot like the people we see on the street or many of us are a paycheck away from needing a public defender. When we change the narrative so we understand that this is a system that protects all of us, I think we'll start to make progress. We haven't done that yet.

MARTIN: So, Eve Primus, let me just ask you this question, why should people care about this who are not directly affected by it?

PRIMUS: Our entire society is premised on this idea of fundamental fairness, equal treatment, right. It's a fundamental core value of the Constitution. And if the government can bring anyone it wants into court and convict them through inquisitorial means without giving them an advocate, it's not long before they can do it to you, to your brother, to your mother, to your sister. As Jonathan said earlier, many people are just one paycheck away from being in the position of many of the public defender clients. So how the government treats its citizens is a fundamental thing that everyone should be concerned about when you're living in a democratic country.

MARTIN: Eve Primus is a law professor at the University of Michigan. She joined us from member station WUOM, that's in Ann Arbor, Michigan. Jonathan Rapping is the president and founder of Gideon's Promise. He's also a law professor at Atlanta's John Marshall Law School, and he was kind enough to join us from NPR member station WCLK in Atlanta. Thank you both so much for speaking with us.

RAPPING: Thank you.

PRIMUS: Thank you for having us. Transcript provided by NPR, Copyright NPR.